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Wati v Permanent Secretary of Health [2011] FJHC 91; HBC77.2006L (17 January 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION HBC NO. 77 OF 2006L

BETWEEN:

KAMLA WATI (as Administratrix in the estate of Gyan Deo)
Plaintiff

AND:

THE PERMANENT SECRETARY OF HEALTH
First Defendant

AND:

THE ATTORNEY-GENERAL
Second Defendant

Mr A Kohli for the Plaintiff
Mr J Mainavolau for Defendants

JUDGMENT

This is a claim for damages brought by the Plaintiff as Administratrix in the estate of her late husband Gyan Deo who died on 29 September 2004.

The action was commenced by Writ issued from the Labasa Registry in December 2006. Initially there were four Defendants named in the Statement of Claim filed with the Writ. A judgment in default of defence was entered on 19 March 2007 against the Defendants by the Plaintiff. A notice to fix assessment of damages was filed on 20 March 2007. The matter was listed before the Master on 13 April 2007. It would appear that on that day the Master made consent orders setting aside the default judgment and directing that the action take its normal course.

A Statement of Defence was delivered on 4 June 2007 by the Defendants. The Plaintiff filed a reply to the Defence on 4 September 2007. A summons for directions was filed on 11 September 2007 followed by Minutes of the Pre-Trial Conference on 9 June 2008.

By Notice dated 1 September and filed on 3 September 2008 the Plaintiff purported to discontinue the action against the First, Second and Third Defendants (being the Consulting Physician Labasa Hospital, the Hospital Manager Labasa Hospital and the Chief Executive Officer Ministry of Health) leaving only the Attorney-General as Fourth Defendant. This notice was not signed by the legal practitioner for the Defendants as was required by Order 21 Rule 2 (7). It would appear that the leave of the Court had not been obtained as was required by Order 21 Rule 3 of the High Court Rules.

By Notice of Motion also filed on 3 September 2008 the Plaintiff sought leave to add the Permanent Secretary for Health as a party (presumably as a Defendant) and to serve and file an amended Statement of Claim. In fact it was most probably not necessary to seek leave to add the Permanent Secretary for Health as a Defendant since the Chief Executive Officer had been named as Third Defendant in the Writ. Since both positions referred to the same person, the fact could have been pleaded in the amended Statement of Claim. Leave was granted.

An amended Statement of Claim was filed on 16 October 2008. The Permanent Secretary of Health as First Defendant replaced the three defendants previously joined in the action.

The Defendants delivered an amended Defence on 27 February 2009. The Defendants denied liability.

Unfortunately the Defence as a pleading is defective in that it is prolix. The four pages of typed material set out evidence rather than facts as required by Order 18 of the High Court Rules. Needless to say the Reply filed on 22 April 2009 by the Plaintiff takes the matter no further.

The hearing of the action commenced on 5 July 2010 at the High Court in Labasa. At the commencement of the hearing the documents numbered 1-20 in the Agreed Bundle of Documents were admitted by consent into evidence as exhibits 1-20. During the course of the hearing five other documents were admitted into evidence. Four of those related to land dealings and the fifth exhibit consisted of two medical reports dated 14 March 2007 signed by Dr Niazi and addressed to the legal practitioner for the Defendants.

Counsel for the Plaintiff also applied to amend the Statement of Claim by withdrawing the claim for damages for pain and suffering. This application was on the basis that the claim was in respect of the Plaintiff herself and not in respect of the deceased. The application was not opposed.

The parties consented to a minor amendment to the Minutes of the Pre-Trial Conference so as to clarify an ambiguity in relation to the sequence of events surrounding the CT scan at the CWM Hospital on 8 July 2004. The amended version will be referred to later in this judgment.

The Plaintiff, Dr Niazi, Dr A Chandra and Mr A Rabuka were called to give evidence.
The hearing was concluded on 8 July 2010. At the conclusion of the evidence Counsel sought and were granted leave to file written closing submissions. The Plaintiff filed submissions on 2 September 2010. The Defendants filed answering submissions on 30 September and the Plaintiff filed reply submissions on 13 October 2010.

In the Statement of Claim the Plaintiff alleges that the First Defendant was the duly authorised representative of the Labasa Hospital and as such could be sued for and was liable for the negligent acts or omissions of doctors, specialists and servants or agents employed at the Labasa Hospital.

The Second Defendant is joined as the representative of the Government of the Republic of Fiji pursuant to the State Proceedings Act Cap 24.

The Plaintiff alleges that her late husband (the deceased) was examined at the Labasa Hospital on 1 February 2004 and was admitted as an in-patient on the same day. He was discharged on 4 February 2004. It is alleged that he was admitted as an in-patient again on 18 June and discharged on 21 June 2004. It is further alleged that he was re-admitted on 7 July for a CT scan at the Colonial War Memorial (CWM) Hospital on 8 July and discharged on 9 July 2004.

The Plaintiff then pleads the cause of action in the following terms:

"6. That it was term and condition of the agreement when the Defendants admitted Gyan Deo in their ward at Labasa Hospital that the Defendants by their doctors, surgeons, nurses, servants and or agents would exercise all reasonable standard of care and duty, skill and diligence in the treatment and management of the said Gyan Deo.

7. In breach of the said agreement the Defendants failed to exercise all reasonable standard of care and duty and diligence in attending to the deceased. The Defendants through their technicians, radiographers, doctors, surgeons and other servants and agents acted so negligently in the care and management of Gyan Deo whereby the said Gyan Deo died on the 29 September 2004.

Particulars of negligence

(a) Failing to conduct a proper examination of the deceased.

(b) Failing to observe and analyse the signs and symptoms of the deceased's conditions.

(c) Failing to examine the deceased's x-ray adequately and failing to refer the x-ray to a radiologist.

(d) Wrongly concluding that the deceased might have been suffering from TB.

(e) Failing to advise the deceased that he could suffer sudden death due to rupture of aortic aneurysm.

(f) Failing to prepare a thorough report of the deceased outlining the seriousness of his condition.

(g) Failing to prepare report in time considering the seriousness of his condition.

(h) Failing to write a proper report with clear cut diagnosis and prognosis.

(i) Failing to afford the deceased proper medical, surgical, specialist and other treatment in respect of the deceased's condition.

(j) Failing to secure the attendance of a competent radiologist and medical specialist to examine the deceased in time."

The Plaintiff claimed special damages in respect of transport expenses, medical reports and funeral expenses totaling $2349.00. The Plaintiff also claimed damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 and under the Compensation to Relatives Act Cap 29. She also claimed interest and costs on a solicitor client basis.

In the Defence, the Defendants admit that the First Defendant was the duly authorised representative of the Labasa Hospital and as such could be sued and was liable for the negligent acts or omissions of the doctors, specialists, servants and or agents employed at the Hospital. The personal liability of the Attorney-General is denied but his being joined as the representative of the State is admitted.

The Defendants admit the dates of admission and discharge of the deceased during the months of February, June and July 2004 but deny any negligence during the periods of admission. There is an assertion that the deceased also attended at the Hospital on 16 June 2004. The Defendants admit paragraph 6 of the Statement of Claim but deny the contents of paragraph 7 and the particulars of negligence. A great deal of evidence is set out in paragraphs 7 and 8 of the Defence to which reference will be made, when relevant, later in this judgment.

In the Minutes of the Pre-Trial Conference filed on 20 October 2009 the parties stated their agreement to certain relevant facts, including the following:

"4. At all material times the deceased was a patient at Labasa Hospital in the care of the 1st Defendant's servants or agents.

5. The Deceased was on 1st February 2004 seen by Dr Elizabeth and after chest x-ray and scan referred to the consultant physician Dr Umar Niazi. The Deceased was admitted to the hospital on 1st February 2004 and discharged on 4 February 2004.

6. The Deceased was again admitted on 18 of June 2004 with left sided chest pain and discharged on 21st June 2004.

7. The Deceased was again admitted on 7 July 2004 for CT scan at CWM Hospital on 8 July 2004.

8. The Deceased underwent a CT scan on 8 July 2004 and received a handwritten chest report on the same day. He was discharged from Labasa Hospital on 9 July 2004.

9. The Deceased at the time of his death was aged 45.

10. Prior to his death the deceased was working as a truck driver and labourer and earning $100.00 net per week.

11. The medical report was issued on 13 July 2004 by Dr Darshan Choudhari.

12. That it was an implied term and condition of the agreement when the servants or agent of the 1st Defendant admitted Gyan Deo in their ward at Labasa Hospital that 1st Defendant by its doctors, surgeons, nurses, the servants and/or agents would exercise all reasonable standard of care and duty, skill and diligence in the treatment and management of the said Gyan Deo."

The Plaintiff has pleaded the existence and breach of a contract between the deceased and the First Defendant. The First Defendant has admitted the existence of the contract and the existence of the implied term that its doctors, surgeons, nurses, servants and/or agents would exercise a reasonable standard of skill in the treatment and management of the deceased. Therefore the parties have accepted that the obligation to use reasonable skill arises under the contract and is not pleaded as an independent duty in tort to use reasonable skill. The Statement of Claim also pleads that as a result of the negligent treatment and management which constituted a breach of the implied term, the deceased died.

The Plaintiff brings the present action as Administratrix in the estate of the deceased and claims damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 and the Compensation to Relatives Act Cap 29. She claims as personal representative of the estate on behalf of the estate and on behalf of the dependents. The Plaintiff and the deceased were married on 7 March 1983. Although there were two children of the marriage born on 14 April 1984 and 10 April 1985, under section 9 of the Compensation to Relatives Act the action has been brought by the Plaintiff on behalf of herself only. The Plaintiff was granted Letters of Administration in the estate of the deceased on 23 March 2005 by the High Court.

The Certificate of Death states that the deceased died on 29 September 2004 on the way to Labasa Hospital. The cause was stated as "sudden cardiac death due to Type B dissecting aortic aneurysm". Date of registration was 29 November 2004.

In Black's Medical Dictionary (40th Edition) the following appears on page 32:

"An aneurysm is a localized swelling or dilation of an artery due to weakening of its wall. The Aorta is the largest artery in the body and an aneurysm may develop anywhere in it. A dissecting aneurysm usually occurs in the first part of the aorta .... Once formed the pressure of the circulating blood within the aneurysm causes it to increase in size. At first there may be no symptoms or signs, but as the aneurysm enlarges it becomes detectable as a swelling which pulsates with each heartbeat. It may also cause pain due to pressure on local nerves or bones. Rupture of the aneurysm may occur at any time, but is much more likely when the aneurysm is large. Rupture is usually a surgical emergency. .... Treatment is usually surgical. The surgery is often demanding and is therefore usually undertaken only when the aneurysm is large and the risk of rupture is therefore increased."

I now turn to briefly consider the provisions of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 (the survival legislation) and the Compensation to Relatives Act Cap 29 (the fatal accidents legislation) that apply to these proceedings.

So far as is relevant, section 2 of the survival legislation states:

2(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action ... vested in him shall survive ... for the benefit of his estate

Provided that ...

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:-

(a) shall not include any exemplary damages

(b) ....

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death except that a sum in respect of funeral expenses may be included.

(3) ....

(4) ....

(5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependents of deceased persons by the Compensation to Relatives Act.

(6) ...".

The effect of section 2 is to put the First Defendant in the same position as regards liability as he would have been in if the deceased had commenced proceedings while still alive. As a result, in the event that the Plaintiff succeeds in establishing that the First Defendant breached the implied term of the agreement between the Hospital and the deceased, then she can recover for the benefit of the estate of the deceased (a) any expense, such as funeral expenses, to which the estate has been put, (b) damages for any pain and suffering experienced by the deceased and (c) damages for the deceased's loss of expectation of life. Furthermore, the estate is able to claim prospective earnings that the deceased could have recovered had he lived. This head of recovery under the survival legislation was confirmed by the House of Lords in the decision of Gammell –v- Wilson [1982] AC 27.

This cause of action is additional to the cause of action commenced on behalf of a dependant pursuant to the fatal accidents legislation. The relevant provisions of that legislation provide:

"3. Where the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person or persons or body of persons, incorporated or unincorporated who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime.

4 – 10. ....

11. In any action brought under the provisions of this act damages may be awarded in respect of the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought."

Under section 3 the Plaintiff is required to establish that (a) the deceased was injured by the wrongful act, neglect or default of the First Defendant, (b) the deceased died in consequence of such injury, (c) at the time he died the deceased had a right to recover damages and (d) the dependants have suffered monetary loss from his death.

The measure of damages is the monetary loss suffered by the dependent wife (as Plaintiff) as a result of the death of her husband. This means the actual financial benefit of which the Plaintiff has in fact been deprived, based on what may reasonably have been expected to taken place in the future. In other words, the monetary benefit which it is reasonably probable the Plaintiff would have received if the deceased had remained alive. It is not necessary at this stage to consider in any depth this measure of damages.
It has for many years been accepted that a breach of contract causing death is an act neglect or default within the meaning of section 3 of the legislation (see Grein v Imperial Airways Ltd [1937] 1 KB 50).

The questions to which the Court must first turn its attention are (1) whether the deceased would have had a cause of action for breach of contract against the First Defendant had he not died and (2) was the death of the Plaintiff's husband caused by a breach of the contract between the deceased and the First Defendant.

Turning now to the evidence. Apart from the testimony of the witnesses called to give evidence I also had before me a copy of the medical folder of the deceased from the Labasa Hospital (ex 20), copies of three medical reports, one dated 22 October 2004 (ex 18) and two dated 14 March 2007 (ex 25 and ex 25(a)) from Dr Niazi and copies of correspondence passing between the parties (ex 12 – 17).

The Plaintiff gave evidence that the deceased was employed as a truck driver for six months of each year and as a farmer for the other six months of each year prior to his death. He was employed by his father both as driver and farmer and was paid $100.00 per week. As a truck driver he worked for his father in the sugar industry. In the off season he was a farmer. His father paid all the outgoings associated with the truck and in respect of the farming activities of the deceased. She stated that they stayed with the deceased's father and his brothers.

The Plaintiff stated that over the years prior to 2004 the deceased had been healthy, that he smoked one packet of cigarettes a week and drank kava and liquor occasionally. He had played soccer and watched boxing. She said that the deceased had not attended a hospital prior to February 2004. This was not correct as pages 70 and 71 of the medical folder showed that he had attended as an out-patient on 16 April 2002, 23 January 2003 and 7 March 2003.

I shall now consider the evidence relating to those matters that have not been admitted in the Defence or included in the agreed facts of the Pre-Trial Conference Minutes.
The admission notes for the period 1–4 February 2004 on page 39 and following of the deceased's medical folder indicate that the deceased presented with a problem on the left side of the aorta. There was a large mass in the area of the left lung. I am satisfied that during this period of admission Dr Niazi and Dr Rowland had identified three possible diagnoses, being (a) aorta aneurysm, (b) cancer and (c) possible atypical TB. It was also considered possible that there was another cancer in the body that had spread to the lung. There was no evidence before the Court to indicate that this differential diagnosis was unreasonable or lacking in skill.

I am satisfied that, during the period of the first admission, Dr Niazi had a conversation with the Plaintiff and discussed with her the possibility that the deceased had a heart problem. I am also satisfied that she requested Dr Niazi not to discuss this matter with the deceased at that stage.

The deceased was discharged on 4 February 2004 with prescribed tablets, told to rest and to perform light work if there was no pain. The medication that was prescribed on this occasion and on subsequent visits or admissions is listed on a document with the title "Pharmacy Patient Prescription History" which can be found on the last page of the Agreed Bundle of Documents.

I am satisfied that the Plaintiff was informed that a CT scan would be required to confirm the diagnosis. I am also satisfied that there was no CT scan machine in Labasa and that it would be necessary for the deceased to go to Suva for the scan. At that time the CT scan machine in Suva was not working. I find that the deceased and the Plaintiff had been informed of these matters.

There was no material before me to suggest that the lack of a CT scan machine at the Labasa Hospital was a consequence of negligence in the organization of the Hospital itself. It was more likely to be the consequence of a resource allocation decision.

I am satisfied that when the deceased was discharged on 4 February 2004 his condition was stable. I accept the Plaintiff's evidence after his discharge from hospital, the deceased did not experience chest pain and did light farming work.

On 18 February 2004 the deceased was seen in the medical clinic. He was prescribed tablets by a Doctor Emmanuel. Although there was a conflict in the evidence I am satisfied on the balance of probabilities that the deceased was asked on 18 February 2004 to return the following week for CT scan in Suva but failed to do so. I do not consider that the First Defendant was required to attempt to make contact with the deceased or the Plaintiff after the deceased failed to attend to finalise CT scan arrangements.

I am satisfied that between 18 February and 2 May 2004, the deceased did not experience any chest pain. The Plaintiff gave evidence that the deceased attended at the hospital in May. The medical records indicate that the deceased was prescribed medication as an out-patient. Although she stated that the deceased attended in May because he had been requested to do so in February (three months earlier) and not because of any chest pain or discomfort, the notes on page 71 indicate that the deceased had complained of chest pain on 2 May 2004.

I find that the deceased did not experience chest pain between 3 May and 18 June 2004. There is a brief note on page 66 of the folder that the deceased attended at the medical clinic of the Hospital on 16 June 2004. It would appear to have been a routine follow-up. On that occasion he was prescribed further medication in the form of Folic acid tablets and Ranitidine tablets.

The deceased was admitted as an in-patient on 18 June 2004 suffering severe chest pain. Once again the differential diagnosis included possible aorta aneurysm. He was discharged on 21 June 2004 when his condition had stablised. He continued on the prescribed medication which is listed in the deceased's Pharmacy Prescription History.

The deceased was informed prior to discharge on 21 June 2004 that he was required to return to the Hospital on 7 July 2004 for admission for CT scan in Suva. He travelled to Suva, accompanied by a nurse, on 8 July 2004 for a CT scan at CWM Hospital in Suva.

Whilst in Suva he was handed a handwritten report for the chest CT scan performed at the CWM Hospital. Upon his return to Labasa, the deceased handed the report to doctors at the hospital. He was discharged on 9 July 2009. The text of the handwritten report appears on page 19 of the folder (ex 20) and states:

"CT Scan – Provisional Report

There is a Type III pseudoaneurysm i.e. Aneurysm that begins from and inferior to the Lt subclavian artery.

- The aneurysm ends above the coeliac trunk

- Maximum diameter of the false lumen is (about) 14cm in the lower thoracic part

- No extravasations of contrast."

It was clear that the diagnosis of aorta aneurysm had been confirmed and the situation of a differential diagnosis no longer existed. I accept that prior to discharge on 9 July 2004 Dr Niazi explained to the deceased the result of the CT scan and that overseas surgery was necessary as treatment was not available in Fiji. I also accept that although the question of cost may have been raised, neither the Plaintiff nor the deceased indicated at that time that they needed financial assistance. I am satisfied that when the deceased was discharged on 9 July 2004 he was free of pain and was taking prescribed medication which is also listed in the deceased's Prescription History.

In summary the deceased experienced chest pain only on 1 February 2 May and 18 June 2004, that required him to attend at the hospital and to be admitted in February and June 2004. I accept that he was taking prescribed medication during that period. I also accept that the Defendant did not experience chest pain requiring hospitalisation or any further follow-up visits to the hospital between 9 July and 28 September 2004.

A formal report dated 9 August 2004 of the CT scan conducted at the CWM Hospital in Suva was subsequently received by the Labasa Hospital. The report was signed by Dr J Kama. It confirmed the diagnosis in the handwritten report.

In the meantime a letter dated 13 July 2004 was prepared and signed by Dr Darshan Choudhari, Medical Registrar at the Labasa Hospital. The letter was addressed "To Whom it May Concern" and stated:

"The above named Indian male was admitted twice to Labasa Hospital with history of chest pain radiating to back, more on exertion, not associated with shortness of breath and palpitations.

First time he was admitted in Men's Medical Ward on 01.02.2004 and was booked for CT scan chest but defaulted clinic. After that he was admitted on 18.06.2004 with same complaints.

He was sent for CT scan chest on 08.07.2004 and is having Type III Pseudoaneurysm of descending Aorta. He was referred to surgical department of Labasa Hospital and advised to get Cardiothoracic Surgeon's opinion.

As no cardiothoracic surgeon is available in Fiji, he should be referred overseas for further management."

I am satisfied that the contents of this letter were consistent with the diagnosis in the chest CT scan handwritten report. I am also satisfied that Dr Darshan, as Medical Registrar, had been requested by Dr Niazi to write the letter.

I find that either the Plaintiff or the deceased did receive a copy of this letter shortly after 13 July 2004. I note that the deceased had signed a request for the medical report and paid $5.00 fee for the report on 9 July 2004, being the date of discharge following the CT scan in Suva (Page 75 of Ex 20).
On 18 August 2004 the deceased and the Plaintiff went to see Dr Ami Chandra the Director Northern Health Services at the Ministry of Health in Labasa. From the evidence given by the witnesses I am satisfied that when the Plaintiff and the deceased went to see Dr Chandra on 18 August 2004 they took with them the report dated 13 July 2004 signed by Dr Darshan.

It appears not to be disputed that during the course of the meeting with the Plaintiff and the deceased, Dr Chandra telephoned Dr Niazi and requested him to rewrite the report dated 13 July 2004. It would appear that Dr Chandra added some handwritten notes on the side of the report that had been given to the deceased and the Plaintiff. He then sent a copy of that report with the handwritten notes to Dr Niazi.

The handwritten notes on the report are difficult to read. However in his evidence Dr Niazi was able to inform the Court that the notes read as follows:

"For Divisional Executive Committee discussion

Issues to sort

- The condition is life threatening and would be regarded as an emergency

- The referral letter is vague and lacks detail

- No concerted effort shown by hospital to show path

Dr Chandra indicated to the Court in his evidence that the last partly obscured point reads:

"patient groping in the dark".

I have no doubt that these notes were written on the report by Dr Chandra as a result of his conversation with the Plaintiff and the deceased. However I do not consider that the Plaintiff and the deceased reliably informed Dr Chandra as to what they had been told by Dr Niazi prior to and on 9 July 2004, nor as to what had transpired between 9 July and 18 August 2004.

As a result a second report dated 20 August 2004 was signed by Dr Niazi. The report stated:

"He was admitted to Labasa Hospital with complaint of chest pain radiating to back, intrascapular region which increased on exertion not relieved by rest, food or oral nitrate therapy.

General physical examination was normal, all vital signs were normal with all peripheral pulses normal and equal. CXR showed radio – opaque shadow extending from superior mediastinuar to the right base of the lung. CT scan chest done on 8.7.2004 which revealed dissecting aneurysm Type B with false lumen about 9 x 6 cm in size, calculus in right kidney. Both renals are normal.

Patient is prone to sudden cardiac death due to rupture of aortic aneurysm. He can definitely benefit from surgery, as there is no medical management for it. His reports were sent to Auckland Cardiothoracic Centre for possible investigations and surgery and cost assessment. Copy of the fax of cost assessment is attached herewith.

Cardiothoracic surgery is not available in Fiji, patient is asked to go abroad for his treatment."

I have concluded that the deceased and the Plaintiff were aware that the condition was serious prior to 18 August 2004 and that this was confirmed by Dr Chandra on that day. I am satisfied that both the Plaintiff and the deceased were made aware of the seriousness of the deceased's condition and the need for overseas surgery by Dr Niazi on 9 July 2004.

I am satisfied that prior to 18 August 2004 neither the Plaintiff nor the deceased had indicated to any doctor at the Hospital that they needed assistance from the hospital to secure finance for the necessary overseas treatment.

However I am satisfied, based on the material and the correspondence, that during the course of their meeting with Dr Chandra on 18 August 2004 they indicated that they needed financial assistance. That is the only possible explanation for the letters that were written by Dr Niazi at the request of Dr Chandra after 18 August 2004. I find that at the request of Dr Chandra Dr Niazi wrote letters to the Ministry of Health and Fiji 6s for funding for the deceased's overseas treatment.

The evidence given by the Plaintiff at the trial was that neither she nor the deceased had ever asked for financial assistance because they could manage themselves. Ex 21 – 24 were put into evidence by the Plaintiff to support the evidence that she and the deceased were able to raise the finance required for the overseas treatment. The Plaintiff also gave evidence at the trial that the deceased's father owned three blocks of land, two trucks and four tractors. She said that the family knew people who could assist them with funding. She said that they had access to $50,000.00.

However a document dated 28 July 2004 from the District Officer Macuata indicated that the deceased had been given approval to conduct an appeal for funds in aid of his medical treatment (ex 20 p 77).

However, for reasons which were not disclosed to the Court the deceased and the Plaintiff went to Dr Chandra for financial assistance.

I also note that although the Plaintiff gave evidence at the trial that they did not need financial assistance, there was no evidence before the Court that the Plaintiff and the deceased had made any arrangements to secure the necessary funding through their own resources. The Plaintiff stated in her evidence that one of the deceased's brothers was attempting to make arrangements for funding, but no details were given.

The Plaintiff stated that neither she nor the deceased were told that the deceased needed overseas treatment. I do not accept that evidence as the material before the Court clearly indicated that they were well aware that overseas treatment was necessary and needed urgently. They were aware of the position from 9 July 2004.

There was no evidence before me to suggest that there was any negligence on the part of the Hospital in respect of the medication prescribed for the deceased or the treatment provided to the deceased whilst he was an in-patient on various dates between 1 February and 9 July 2004.

Although there was some delay between the date of the initial differential diagnosis in February and the date of the confirming chest CT scan in July 2004, the factors causing that delay were in part beyond the control of the doctors at the Labasa Hospital. There was no CT scan machine at the Labasa Hospital. There was one CT scan machine in Suva. It was not in operation for a period in February 2004. Bookings for a CT scan in Suva were required to be made through the CWM Hospital in Suva. The delay was, in any event, not a significant or even contributing factor as there was adequate time following his discharge from hospital on 9 July 2004 for overseas treatment to be arranged. There was no evidence that the delay had reduced the deceased's chances of surviving overseas surgery.

It was not suggested that the time taken to prepare the report dated 13 July 2004 was unreasonable following receipt of the handwritten chest CT scan report dated 8 July 2004. Nor was it suggested that the diagnosis contained therein was wrong or negligent.

What was put into question was the management of the deceased upon his discharge from hospital on 9 July 2004. This was a matter that the Plaintiff sought to fortify through the evidence of Dr Chandra.

Dr Chandra's evidence was to the effect that the doctors at the Labasa Hospital had not done all that they should have and could have done to assist the deceased. In particular he said that the report dated 13 July 2004 did not adequately indicate the urgency of the deceased's condition. He stated that as a result of his conversation with the deceased and the Plaintiff on 18 August 2004 he considered that Dr Niazi had not adequately explained to the deceased either the seriousness or the urgency of the condition. He also thought that Dr Niazi should have provided more assistance to the deceased in terms of providing information on costs of overseas treatment.

As I have already stated, I am satisfied that as at 9 July 2004 the deceased and the Plaintiff were aware that the chest CT scan confirmed that he had a condition known as aortic aneurysm. I am satisfied that the deceased was aware that it was a life threatening heart condition. I am satisfied that the Plaintiff and the deceased had been advised that treatment for the condition was not available in Fiji and that it would be necessary for him to travel overseas for treatment. I am satisfied that the Plaintiff and the deceased discussed these matters with Dr Niazi on 9 July 2004. The deceased had requested the report on 9 July 2004 and paid a fee for it. I am also satisfied that shortly after 13 July 2004 the Plaintiff and the deceased received a medical report dated 13 July 2004 signed by Dr Darshan. I am satisfied that this report was sufficient and reasonable to assist the Plaintiff and the deceased in their efforts to make the necessary arrangements including securing the finance for the treatment whether by public fundraising activities or for them to access their own resources.

On 28 July 2004 the deceased was given approval by the District Office to commence public fundraising. As at 18 August 2004 the funds had not been raised by public appeal and the Plaintiff and the deceased had not made any arrangements to access or liquidate any of their own assets.

I am satisfied that the reason why they visited Dr Chandra on 18 August 2004 was for the purpose of obtaining financial assistance from the Ministry of Health, both directly and indirectly for funding for the overseas treatment.

I am satisfied that after 18 August 2004 Dr Niazi did all that was requested of him by Dr Chandra and that both he and Dr Chandra did all that could reasonably have been expected of them once the Plaintiff and the deceased had sought financial assistance from the Ministry.

The question whether the First Defendant has exercised reasonable skill and care arises in connection with the medical report dated 13 July 2004 signed by Dr Darshan. As previously indicated I am satisfied that there was no unreasonable delay in producing the report and nor was there any evidence that there had been unreasonable delay in passing the report to the deceased.

The issue is more concerned with its contents. In Everett –v- Griffiths [1920] 3 KB 163 Atkin LJ made the observation at page 213 that a doctor who prepares a report which he is aware may be relied upon by others for the treatment of the patient has a duty to exercise reasonable care in writing the report. In my opinion a similar obligation arises when the report is prepared for the purpose of making arrangements to travel overseas for medical treatment. However the detail or information that is required to be included in such a report in my opinion depends upon how the patient intends to use the report. It was not disputed that between 9 July and 18 August 2004 neither the Plaintiff not the deceased had indicated to either Dr Niazi or Dr Darshan that they were in need of any assistance from the hospital. It is reasonable to infer under those circumstances that the report dated 13 July 2004 was written by Dr Darshan on instructions from Dr Niazi on the basis that it was to be used for the purpose of making all the arrangements that were necessary for the deceased to travel overseas for urgent medical treatment.

There was no evidence before me that the deceased or the Plaintiff had experienced any difficulty with any financial institution due to the inadequacy of the report dated 13 July 2004. There was no evidence that the deceased or the Plaintiff had requested a second report from Dr Niazi that might have indicated more clearly the need of the deceased to travel overseas for urgent medical treatment. In my opinion the urgent nature of the situation was apparent from the contents of the report.

It is clear that the report had been relied upon by the deceased when he obtained approval from the District Officer Macuata to commence a public appeal for funds.

I am not satisfied that under the circumstances the report dated 13 July 2004 was prepared in a manner that constituted a breach of the implied terms to use reasonable skill and care.

However, by the time the deceased and the Plaintiff went to see Dr Chandra on 18 August 2004 they had clearly changed their position. As I have said, for whatever reason, they had decided not to utilise their own resources and the public fund raising had not succeeded. They had decided to seek public (i.e. State) assistance. The report dated 13 July 2004 was not suitable for that purpose and as a result Dr Chandra requested Dr Niazi to rewrite the report which he did.

The only remaining question concerns if and to what extent Dr Niazi should have provided any assistance or further advice or information to the deceased after 9 July 2004. Although the Plaintiff gave evidence to the effect that the deceased had requested medical records from Dr Niazi some time after 9 July 2004, I do not accept that evidence. It was not put to Dr Niazi in cross-examination and the Plaintiff did not explain to the Court the reason why the deceased or the Plaintiff wanted copies of medical records. The Report dated 13 July 2004 explained the nature of the deceased's condition and the fact that he needed to travel overseas for treatment. That report had been sufficient to obtain approval to raise funds by a public appeal. I have concluded on balance that neither the Plaintiff nor the deceased requested any further assistance from Dr Niazi prior to 18 August 2004. The steps taken after that date by Dr Niazi to try to arrange funding and appointments overseas were reasonable under the circumstances. Confirmation of an appointment for treatment in India had been received at about the time that the deceased had passed away. In view of the evidence given by Dr Niazi and Dr Chandra I have concluded that the First Defendant had not fallen below the standard of assistance required or expected under the contract. The fact that Dr Chandra may have written the Report dated 13 July 2004 in a different manner does not necessarily indicate that either Dr Niazi or Dr Darshan were negligent. I am satisfied that Dr Niazi's management of the deceased was reasonable in the circumstances of this case.

In view of these findings it is not necessary to consider the question of causation. However, since the statutory causes of action arise as a result of the death of the deceased, it is appropriate that I briefly comment on the issue of causation. This question is relevant with particular reference to the claim under the fatal accidents legislation. The Plaintiff is required to establish that the death was caused by the First Defendant's wrongful act, neglect or default.

At this point I need to comment about the medical evidence adduced by the Plaintiff. The only medical reports that were put into evidence were reports prepared by Dr Niazi who was and still is employed by the First Defendant. There was no independent medical report that might have assisted the Court in relation to either the appropriate practice in the circumstances of this case nor in relation to the probability of survival of the deceased if overseas treatment could have been arranged earlier. Nor was there any evidence from any independent expert that the deceased's death could be attributed to any unreasonable or avoidable delay (which I have already found could not be attributed to the First Defendant).

The only medical evidence called by the Plaintiff at the trial was given by Dr Chandra. Dr Chandra had formerly been employed by the First Defendant and had left that employment under circumstances that indicated that his evidence may lack objectivity. After all he had vetted and approved the contents of the report dated 14 March 2007 prepared by Dr Niazi. In fact he had requested that Dr Niazi write a second version (ex 25 and 25 (a)).

Doctor Chandra is currently in private practice in Nabua. He graduated with MBBS degree from the Fiji School of Medicine in 1984. He subsequently worked as a medical officer and then as a divisional medical officer. From 2001 to 2007 he was Director Northern Health Services and in 2008 was appointed Director Curative Health Services. He told the Court that he had hospital administration experience.

The medical evidence adduced by the Defendants was given by Dr Niazi. He graduated in medicine and obtained post graduate qualifications in cardiology in Pakistan. He arrived in Fiji in 2003. In 2004 he was employed as a consultant physician at Labasa Hospital specializing in cardiology.

The issue of causation became blurred when during cross-examination of Dr Niazi Counsel for the Plaintiff read to the witness an extract from a publication "Cardiology" by R H Swanton (Fourth Edition) at page 411 with the heading "Dissecting aneurysm of the thoracic aorta".

"This commonly occurs in men aged 40-70 years and is frequently fatal if untreated. Fifty per cent die within 48 hours, 70% in 1 week and 90% in 3 months. .... It is usually a spontaneous event and a history of trauma is unusual."

Dr Niazi stated that from his knowledge and experience he would agree with that statement. Apart from describing a condition that appeared to be consistent with the handwritten chest CT scan report written by Dr Kama on 8 July 2004, this evidence did not assist the Court on the question of causation.

This material must also be considered in conjunction with the evidence given by Dr Niazi to the effect that the deceased's condition was genetic. The aortic dissection was an hereditary condition involving several defects. It was unfortunate for the deceased that he was the only one of four brothers to have been born with the condition.

There was no evidence before the Court of any spontaneous event, other than the sudden death of the deceased on 29 September 2004. There was no evidence as to the events immediately prior to or leading to the deceased's death. The reference in the text to a spontaneous event may be a reference to rupture.

In the event that there had been a finding of negligence and hence a breach of the implied term, the medical evidence that was adduced by the Plaintiff did not establish on the balance of probabilities that the negligence caused or contributed to the death of the deceased. There was no evidence to relate the raw data to the particular circumstances of the deceased. The death certificate stated that the cause of death was Type B Dissecting Aortic aneurysm. The handwritten chest CT scan report by Dr Kama on 8 July 2004 stated that the deceased had a Type III pseudaneurysm.

There was a gap in the medical evidence that was presented at the trial and it was for the Plaintiff to establish the claim that the negligence of the First Defendant caused or contributed to the death of the deceased rather than leave open the scenario that the deceased's condition was such that he was unlikely to survive beyond surgery no matter where or when it was performed. The doctors who gave evidence did not have the expertise to provide the Court with an informed opinion as to causation or the chances of survival of the deceased. Furthermore there was no expert evidence as to what the deceased's chances of survival might have been when he first presented in February 2004 and what they might have in July 2004 following the chest CT scan.

The only evidence on this point was given by Dr Chandra. The best he could say was that if surgery had been successful the deceased would have received a prosphetic artery. If surgery was not successful he would have died on the operating table or shortly afterwards.

Although not addressed by Counsel in submissions, this evidence does touch upon the possibility that, had I found negligence on the part of the First Defendant, either the report of 13 July 2004 or delay or the lack of assistance deprived the deceased of an opportunity of undergoing surgery overseas that may have resulted in the successful implanting of prosphetic artery. The Plaintiff did not establish on the balance of probabilities that competent overseas treatment would have resulted in successful surgery. There was no statistical evidence before me on that point. The material from the medical publication appeared to be concerned with the onset of a spontaneous event such as a rupture. The deceased had been born with this condition. The evidence did no more than establish that overseas treatment was the only option available to the deceased. The evidence did not establish whether the treatment would be successful or what were the chances of survival for the deceased. This was evidence that could only have been offered as an opinion by an expert qualified to give such evidence.

In considering the weight to be given to the evidence called by the parties I have taken into account two matters that affect the case for the Plaintiff. First, there were a number of inconsistencies between the testimony of the Plaintiff at the trial and the documentary evidence. Secondly, Dr Chandra left the employment of the Ministry of Health in circumstances that may be described as "under a cloud". It was clear to me that he had shifted his position in relation to the manner in which the deceased had been managed by the First Defendant. On the other hand I found Dr Niazi's evidence to be credible and consistent. I regarded his recollection of events as reliable and I considered him to be a truthful witness.

As a result I have preferred the testimony of Dr Niazi when there has been a conflict in the evidence.

The Plaintiff's action is dismissed. The Defendants are entitled to costs on a party party basis to be agreed and if no agreement to be taxed.

W D Calanchini
JUDGE

17 January 2011
At Suva